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School’s Duty to Supervise the Child Had Ended When the Child Was Struck by a Car Just Outside the School Building/City Is Immune from Liability for Alleged Negligent Traffic Control—No “Special Relationship” with the Child

The Second Department determined the school's duty to supervise plaintiff's child had ended at the time the child was struck by a car outside the school building.  Plaintiff had already taken custody of the child at the time.  In addition, the court determined that the city was immune from liability for the alleged negligent traffic control because no special relationship between the city and the child existed:

A school's duty to supervise the students in its charge arises from its physical custody over them … . The rationale underlying this duty is that when a school takes custody of a child, it deprives the child of the protection of his or her parents or guardian, and thus must give the child the protection of which the child has been deprived .. . For this reason, a school's duty to supervise is generally viewed as being “coextensive with and concomitant to its physical custody of and control over the child. When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases” … . In support of their motion, the municipal defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that they had released the infant to the plaintiff's custody and, thus, he was no longer in the custody of the municipal defendants when the accident occurred.

… A municipal defendant is immune from liability for negligence claims arising from the performance of its governmental functions … . However, there is a “narrow class of cases in which [the courts] have recognized an exception to this general rule and have upheld tort claims based upon a special relationship' between the municipality and the claimant” …. “A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation” … . Regulation and control of traffic and public transportation “is the exercise of an unquestioned governmental function” … . Here, the municipal defendants made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that they did not owe the infant a special duty and, in response, the plaintiff failed to raise a triable issue of fact. Giresi v City of New York, 2015 NY Slip Op 00844, 2nd Dept 2-4-15


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